Amid doc's trial, accuser's attorney faces DA inquiry

Updated 9:36 pm, Tuesday, June 11, 2013

Dr. Calvin Day could face up to 20 years in prison if jurors find him guilty of sexual assault against a woman in his office in August 2010.

Dr. Calvin Day could face up to 20 years in prison if jurors find him guilty of sexual assault against a woman in his office in August 2010.

Amid doc's trial, accuser's attorney faces DA inquiry

1 / 1

Back to Gallery

The unusual trial of San Antonio physician Calvin Day, who is accused of sexually assaulting a patient, again was dominated Tuesday by even more unusual allegations outside the jury's presence.

In a heated hearing before the day's testimony, First Assistant District Attorney Cliff Herberg indicated to state District Judge Ron Rangel that his office is investigating felony witness tampering allegations against attorney Andrew Del Cueto, who was privately hired by Day's accuser.

Rangel denied prosecutors' request to have Del Cueto removed as the woman's attorney and to replace him with a court-appointed lawyer.

“We believe (the accuser) is being manipulated by Mr. Del Cueto, and that constitutes tampering with a witness,” Herberg said. “Mr. Del Cueto has done his very best to undermine her credibility to this jury.”

Del Cueto described the allegations as “preposterous and disingenuous,” adding that the accuser hired him only because she had come to distrust prosecutors. “She felt threatened and now lacks confidence that the agents of your office have her best interests in mind,” he wrote in a May 29 letter to the district attorney's office.

Day, 61, could face up to 20 years in prison if jurors find him guilty. During three days of testimony, the woman has said she went to Day's deserted office for a follow-up to a Botox injection one Sunday in August 2010 when he groped her chest, exposed himself and used his hand to assault her under her dress.

She is expected to continue testifying Wednesday.

It is the policy of the San Antonio Express-News not to identify sexual assault accusers.

Day also has a sexual assault charge pending against him involving another woman. In court documents, prosecutors have indicated that 13 other women have come forward to report improper interactions of a sexual nature at Day's office.

Central to prosecutors' allegations against Del Cueto Tuesday was an undated legal document that stated the accuser would “waive prosecution” and pay Day $10 in exchange for Day's agreement not to file a civil case against her. The joint affidavit between Day and his accuser was never finalized.

No competent lawyer would ever advise his client to enter such an agreement, Herberg said, explaining that a financial settlement on the eve of trial “would give the defense a cannon to shoot at her.”

Del Cueto, however, said he “strongly advised her not to do this.”

He said he was hired because the accuser realized that she testified during a 2011 Texas Medical Board hearing that she told Day “no” as he was sexually assaulting her when it might have been something she only thought. She was afraid of being accused of perjury, and she didn't believe prosecutors when they incorrectly told her it wasn't, he said.

During her third full day of testimony before the jury Tuesday, the accuser clarified that although she might not have said “no” when Day was touching her breasts and genitals, she did tell him “no” moments earlier as he began to kiss her neck.

“Dr. Day, I'm sorry, if I misled you, this is my fault. Please stop,” the woman recalled telling him, explaining that he then put his hand on her head and made her look at his exposed genitals.

“I have never been more scared in my life,” she said.

The trial has been rife with behind-the-scenes controversies that started the day before jury selection began when the defense accused District Attorney Susan Reed of having a drunken one-night stand with Day in Las Vegas in 2006. While arguing to the judge Tuesday, Herberg referred in passing to the allegation, which Reed adamantly denied, as “that B.S. alleged tryst.”